Members of Congress have toyed with various tax ideas to help pay for health care. So, for instance, some floated the idea of a tax on cosmetic surgery -- the "BoTax"? -- an idea Professor Bainbridge thinks could alter the political landscape of southern California). This prompted Glenn Reynolds to wonder whether Congress could tax abortion. It's an interesting question, to which Paul Caron responds here.

My own view is that, under current law, a tax targeted at abortions would be difficult to sustain. Under Casey, states may not impose regulations that place an "undue burden" on a woman's constitutional right to terminate her pregnancy. A law creates an "undue burden" where it has "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." Any abortion tax large enough to raise a meaningful amount of revenue would likely increase the cost of abortions sufficiently to constitute an "undue burden" under this test.

Of course, this assumes that Casey would govern the case, but I think that is a fair assumption. While at least two, and perhaps as many as four, justices believe the "undue burden" test is too restrictive on states, Justice Kennedy was part of the Casey decision that established this test and has shown no indication he is willing to abandon it. Indeed, one could argue that his opinion in Gonzales v. Carhart is more consistent with the test articulated in Casey than Stenberg v. Carhart. So I believe the question would come down to whether an abortion tax is consistent with Casey's "undue burden" standard.

Why is abortion different? It would seem that if the Fetching Mrs. Bumpjon had a right to do what she pleased with her body, i.e., the right to abort an unviable fetus or inject Botulinum into her face, then any tax that places an undue burden on that right would fail. Bumpjon always thought that was the basis of abortion law, that you have sovereignty over your body.

Well usually abortion is promoted and viewed as a public health issue. Discouraging abortion would be contrary to the obvious reason of having abortion legal in the first place. You could even argue for subsidizing abortion for those who do not have access to the procedure.

Any abortion tax large enough to raise a meaningful amount of revenue would likely increase the cost of abortions sufficiently to constitute an "undue burden" under this test

There's over a million abortions a year. Average cost is about $400. A 10% tax would raise the cost $40 (hardly an "undue burden"), but would raise over $40,000,000. I guess that's still not "meaningful" in post-stimulus America, but I wouldn't turn it down.

Yeah, it seems to me that Caron and Adler are kind of missing the point. The question, to me, should be in what ways cosmetic surgery is similar to abortion. Is there a liberty interest in cosmetic surgery in the same way that a woman has a liberty interest in abortion? Both involve people controlling their own body. Is there any countervailing interests in cosmetic surgery as there are (life of the fetus) involved with abortion?

One can imagine a uniform medical services or benefits tax that would include abortion. Such a thing is being proposed by some Democrats as a way to raise revenues for the proposed health system, as a transfer from those able to pay to those unable. One can even imagine a "luxury" medical services tax on elective treatments not essential to health (such as that "BoTax") that would include abortion, although that would raise a severe controversy over what kinds of treatments are "luxuries" and what kinds are for the health of the patient, and who decides.

And on what would the tax be calculated? The fees charged? And if the procedure is done at no charge, could it be taxed on a zero basis?

I would expect any such taxes to be so unpopular that they would never fly.

Can they tax any medical procuedure? It seems hard to argue that on has more of a right to an abortion than a heart operation. Can they tax one but not the other? (Of course, I'm still not sure how someone could have a right to an abortion but not medical marijuana.)

The undue burden argument would probably have to rely on notorious social statistics to see how prohibitive a marginal cost increase is. I imagine many abortions are performed on women who would find an increase difficult (for a variety of reasons) to deal with even if the dollar increase itself may not seem too significant. Then again, some are making the argument those who get plastic surgery/botox aren't all Thurston Howell 3rd's and would be hurt by a tax increase as well.

Such a tax would clearly be more likely (to be seen and to be effective) at the state level and would make for interesting referendums/court challenges. Either way, it would inevitably be challenged and end up in a messy discussion of statistical/economic studies. Whether 'undue burden' would be applied in the context of privacy vs public health vs property would be interesting.

If they can put a $200 transfer tax on machine guns, supressors, and short barreled rifles at a time when $200 was more than the taxed items typically cost (and which the sponsors did because it was widely agreed the feds couldn't ban them), I don't see why abortion would be safe.

There's over a million abortions a year. Average cost is about $400. A 10% tax would raise the cost $40 (hardly an "undue burden"), but would raise over $40,000,000. I guess that's still not "meaningful" in post-stimulus America, but I wouldn't turn it down.

40 million isn't peanuts, but it's nothing compared to the estimated costs of the health care plan. For the abortion tax to matter we'd probably want more like a 100% tax, maybe even closer to 1000%. At that point, I think it becomes credible that there's an undue burden in place.

I wonder what the Constitutional (and political) status would be of a bill to put a cap on the price of an abortion at, say, $100. Supporters of the bill could argue that it was removing a "substantial burden". Whether they could do so with a straight face I don't know -- a price cap would cut the
number of abortions by perhaps 50%, as providers went out of business -- but less-clever people make similar claims about other kinds price caps all the time.

There's over a million abortions a year. Average cost is about $400. A 10% tax would raise the cost $40 (hardly an "undue burden"), but would raise over $40,000,000. I guess that's still not "meaningful" in post-stimulus America, but I wouldn't turn it down.

The supreme court held the poll tax to be an undue burden. The last year it was collected in Texas it was $1.75.

Also, how would this tax work? If the Fetching Mrs. Bumpjon is on the public option insurance and that plan pays for the abortion, botox, or boobie surgery, does she have to pay out of pocket for the tax? That's seems a little oxymoronic. Assuming the 10% tax discussed above, the government will use the $40 collected to pay for the $400 surgery? Oh well Bumpjon did have to pay federal income tax on his military pay.

What about the tax on providers of abortion? Of course, the argument would be that they would just pass down that cost, but that may be sufficiently attenuated for constitutional purposes. For example, if we were to tax book publishers $20 per book (irrespective of content), I don't think that it would raise significant Constitutional issues, even if said tax would be passed down to writers/readers and thus make it more difficult to publish/purchase the book. I am not sure why abortion would be different.

What about the tax on providers of abortion? Of course, the argument would be that they would just pass down that cost, but that may be sufficiently attenuated for constitutional purposes.

Taxing providers of abortion and taxing consumers of abortion will distribute the tax burden in exactly the same way.

I don't know how elastic demand for abortions is, but I would think it's quite inelastic. It occurs to me that if the tax isn't high enough to significantly reduce the number of abortions, it is by definition not an undue burden. Maybe.

Would there be a rational revenue basis for such a tax? At the margin it would deter people from having abortions. Mostly likely those would be people with lower incomes. What is the average marginal cost to society of an additional poor and unwanted child?

I'd like to inject an important distinction that hasn't been mentioned yet: Carrying a child to term is an expensive, physically-altering and -draining, and potentially medically-risky ordeal, which is often the result of an honest accident. Seeking abortion for many women is the more financially, medically, and personally wise decision. Abortion is absolutely a public health issue (look what happens when you outlaw abortion, more women die).

I suppose you could argue that the threat to a person's self-esteem from being denied cosmetic surgery is similar, but you'd have a hard time supporting that claim. This is really a false comparison, and arguments against one aren't necessarily valid against the other.

The social cost of abortions cannot be easily defined. However, lots of taxes are questionable in revenue terms, particularly if they seek secondary objectives. For example, if we encouraged smoking, people would die sooner, relieving stress on the retirement system, and thus arguably tobacco taxes cost the government money.

A large proportion of the poor, and even homeless, prioritize having a cellphone (usually a cheap one with prepaid service) over foor or shelter, because it is critical for them in getting work. Many government or charitable services to the poor demand one have a phone number.

Everyone should spend some time being down and out, with no one to turn to. It provides a different perspective on many matters.

Are you focusing too much on the "burden" part and not enough on the "undue" part? That is:

A 10% tax on a [$400] good or service, except in edge cases, is not going to be a burden. In edge cases, especially for medical services, one would hope or expect that third parties would pick up the tab and/or the difference anyway.

But a tax, in general, may be "undue". A tax on abortion services, specifically, seems to fail here.

What is the average marginal cost to society of an additional poor and unwanted child?

When I worked as a volunteer with Planned Parenthood in Nashville I did an analysis of the return on investment of birth control (the cost of which is similar to abortion) taking into account only measurable welfare and similar public costs. I came up with 18,500%. When other social costs, such as crime, law enforcement, incarceration, and other costs are estimated, one can get over 90,000%.

That was back in the days when "conservatives" supported birth control and abortion as a way to reduce crime and other social morbidities.

I wonder what the Constitutional (and political) status would be of a bill to put a cap on the price of an abortion at, say, $100.

I absolutely adore this idea. I would love to hear Democratic politicians arguing that measures that would keep the cost of abortion low would make it harder for women to get abortions. Why, it's almost like price controls reduce supply!

Carrying a child to term is an expensive, physically-altering and -draining, and potentially medically-risky ordeal, which is often the result of an honest accident. Seeking abortion for many women is the more financially, medically, and personally wise decision.

Totally agree. Kids are incredibly expensive, even if you're a terrible parent or if you give the kid up for adoption. So if you're rational about it, a 100% tax on abortions would still be a better deal financially than giving birth. Comparatively, the "burden" of a 100% tax is nothing.

I suspect the main public health concern about abortion is that if it's illegal, some women will still want and get abortions. Providers of illegal abortions might range from a doctor breaking the law to someone with no real medical training. The theory is that more women will suffer negative physical health complications (such as infection, possibly leading to fertility impairment or death).

Incidentally, apparently Sotomayor was asked during her confirmation hearings if abortion was a public health issue (source).

Totally agree. Kids are incredibly expensive, even if you're a terrible parent or if you give the kid up for adoption. So if you're rational about it, a 100% tax on abortions would still be a better deal financially than giving birth. Comparatively, the "burden" of a 100% tax is nothing.

If you have the ability to pay the 100% tax up front, then yes. If you don't have the ability to pay, all the rationality in the world won't help.

For example, if we encouraged smoking, people would die sooner, relieving stress on the retirement system, and thus arguably tobacco taxes cost the government money.

I'm pretty skeptical that the numbers work out on this. Smoking related deaths and illness hit lots and lots of working age people as well, which of course means less tax revenue and lots of expensive medical care for those who only become ill or don't die quickly.

Bumpjon notes that there is nothing wrong with the Fetching Mrs. Bumpjon's face or boobies. He was just stating that she has the right to choose to fix them.

Yes, she has the right to "change" them without implying that something is wrong with their current condition. But why did you say "fix" them? I hope for your sake that the Fetching Mrs. does not read VC comments. :-)

I suppose there are a few marginal cases where a 10% tax would be the breaking point for people seeking an abortion, but it's unlikley given that abortion is subidized by Planned Parenthood and, no doubt, by snarky altruists like yourself.

Yes, she has the right to "change" them without implying that something is wrong with their current condition. But why did you say "fix" them? I hope for your sake that the Fetching Mrs. does not read VC comments. :-)

Bumpjon used the word "fix" because nobody, besides Michael Jackson and few other nutters, has cosmetic surgery unless it's to fix a perceived problem. The Fetching Mrs. Bumpjon is not pregnant, but she still has a right to terminate an unviable fetus (if one should arrive however that happens) just as she has the right to fix her face or boobies (if she perceives them to be in need of fixing). Also, Bumpjon and the Fetching Mrs. Tavares share everything including our thoughts and comments on VC; thus, Bumpjon sent a link to her so that she could follow Bumpjon's inanity.

Well, even an uncomplicated pregnancy has identifiable medium term detrimental effects on the health of the mother, whereas lack of cosmetic surgery does not (corrective surgery is not cosmetic), so a 'right to avoid harm' could be implicated.

So they won't get an abortion if the cost goes up $40? They will have a child whose "start up" costs are much, much higher instead?

Someone should direct me to the place where one can get a crib or bassinet, diapers, clothes, etc. for $40.

Bob is doing what is all too often done here on VC: assuming that other people act rationally.

One would think that, birth control being more available than ever before in the history of the human race, safer, more effective, cheaper, and with less stigma attached than ever before, women who do not want babies would avail themselves of it. Alas.

CONTRACEPTIVE USE
• Fifty-four percent of women who have abortions had used a contraceptive method (usually the condom or the pill) during the month they became pregnant. Among those women, 76% of pill users and 49% of condom users report having used their method inconsistently, while 13% of pill users and 14% of condom users report correct use.[9]

• Forty-six percent of women who have abortions had not used a contraceptive method during the month they became pregnant. Of these women, 33% had perceived themselves to be at low risk for pregnancy, 32% had had concerns about contraceptive methods, 26% had had unexpected sex and 1% had been forced to have sex.[9]

• Eight percent of women who have abortions have never used a method of birth control; nonuse is greatest among those who are young, poor, black, Hispanic or less educated.[9]

• About half of unintended pregnancies occur among the 11% of women who are at risk for unintended pregnancy but are not using contraceptives. Most of these women have practiced contraception in the past.[1,10]

I gatgher this is all supposed to be funny: comparing a woman's [or couple's] need for an abortion with a wish to look better.

And, yes, the verbs 'need' and 'wish' were deliberately chosen.

Even the most morally shallow people seeking abortions - people for whom it is no more morally meaningful than getting a mole removed - have reasons for seeking one that are likely to be far more serious than those of anyone seeking [genuinely] elective cosmetic surgery.

Carrying a child to term is an expensive, physically-altering and -draining, and potentially medically-risky ordeal, which is often the result of an honest accident.

No, officer, my zipper accidentally wouldn't stay up and her legs accidentally popped open and then, accidentally of course, this thing here went in there due to a unfortunate confluence of other accidentally coincidental stuff...

CONTRACEPTIVE USE
• Fifty-four percent of women who have abortions had used a contraceptive method (usually the condom or the pill) during the month they became pregnant. Among those women, 76% of pill users and 49% of condom users report having used their method inconsistently, while 13% of pill users and 14% of condom users report correct use.[9]

And even among those who claim to have used them consistently and correctly, how much is that response biased in that the alternative answer is, no, I was too stupid and/or irresponsible to do it right?

Not every woman on the planet is incompetent. While we're slinging pointless mud, why don't we also blame every man in the country with high blood pressure for being too incompetent to take his Lipitor each day? Overgeneralizations are fun!

Birth control pills function by overriding the natural process by which, for a few days a month, a woman becomes fertile. If her body chemistry is such that she falls outside the protective range of the drug, then she might become pregnant anyway.

The endocrine system, and particularly the convoluted orchestra of hormonal and genetic cascades that occur monthly in most women between the ages of 13 and 40, varies highly from individual to individual. Dosage, packaging, and combination varieties of birth control medications are standardized. For a given pill of the same dosage, taken consistently and correctly, one woman might lose weight dramatically, one might gain weight, another might start hemorrhaging internally, another might develop acne, and another might become suicidally depressed.

Is it really a huge surprise that one might become pregnant as well?

Don't get me wrong, I have little sympathy for those who are unwilling to expend the time and energy to properly manage their medications (or, in the case of condoms, medical devices). But to say that "if you got pregnant while taking birth control pills, you must have been doing it wrong" negates any possible human variation and passes excessive judgment. Similarly, you're implying misplaced shame in having protected sex. If you're using protection correctly, and it fails anyway for reasons outside of your control, then yeah, it's an honest accident.

There's an interesting phenomenon in psychology where people (particularly the insecure) hasten to blame accident victims for the misfortunes that have befallen them. Without knowing the facts, many people will prefer to believe that the accident was the result of negligence or foolish behavior. After all, if it's the victim's fault, then there must be elements of control to the situation. Therefore, if one behaves responsibly and wisely, one will not be in danger of experiencing the same accident.

The idea that sometimes accidents just happen, or that things can go wrong despite every effort towards the best, bothers the hell out of people.

I'm kind of amazed at the women who evidently admitted that they didn't even try to avoid pregnancy. We're told that abortion is ALWAYS a painful, wrenching decision. I don't believe it. It should be, but I don't think it is.

A woman who doesn't try to avoid pregnancy and then has an abortion probably just wasn't thinking about pregnancy at all, though in some cases it indicates changing her mind. In any case, stupidity is not against the law, and is not by itself grounds to prevent someone from taking an otherwise legal action.

One can certainly imagine taxes that might be valid which would have a disproportionate impact (I am decidedly pro-choice and support none of them) --

1. Sales tax on uninsured and non-governmentally funded surgical treatment with a de minimus exception for entities receiving at least 75%+ insurance/government funding (mostly cosmetic surgery and abortion) -- similar distinctions are made already between public and private foundations.

2. A variation exists under current law. There is a 7.5% of AGI floor on unreimbursed medical expenses, and abortion expenses are rarely reimbursed.

3. Providing that abortion services do not qualify as charitable gifts and that abortion providers are in a relationship similar to employer-employee that is incapable of being a gift. Then, taxing discounts and free abortion services as discharge of indebtedness income.

4. A law similar to PACs requiring that abortion services be provided by a separate entity with a distinct business location, with a penalty tax on 100% of the non-segregated income. Since it can be avoided, the burden may not be undue, but the impact on the providers is to limit this kind of service to ghettoized practices (something close to contempoary reality for other reasons but given de jure force by such a tax).

5. Biowaste disposal "user fees" as the going rate for a paupers' funeral - $400, or private pay through licensed mortuary service in jurisdiction (only a few there and they all don't like you).

6. Categorize medical equipment for use in abortions as state valued rather than locally valued property for property tax purposes and then appoint a state assessor in that department who is unfriendly and insists, for example, on very slow depreciation schedules for property tax purposes, or unrealistic return on income valuation attributing much of the value created by professional services to the tools instead.

7. Statistical reporting filing fee -- small but they add up.

8. Business license fee that reflects additional anticipated security costs from anticpated protests (similar to parade permits which require the same thing).

9. Outpatient surgery excise tax (would cover ambulatory surgery centers, cosmetic surgery and abortion, on the theory that they don't bear the costs of ER department losses that surgeries in hospitals do). This would particularly burden abortion providers because they are in a high volume, low cost per procedure practice typically.

10. Bonding and insurance requirements with high, arbitrary numbers.

11. Information return requirements for patients to doctors subject to usual tax confidentiality rules with no dollar floors. Lawyers are subject to similar rules when they have business clients. This wouldn't produce much revenue but would create confidentiality fears that could suppress client access in a seemingly beneign way.

12. Special use permit fee for the relevant zoning classificatioion that is similar to other much more lucrative uses (e.g. PUD developments and shopping malls) -- $20,000.

13. Require conformity with state law to be confirmed on a case by case basis by a state inspector whose hourly rate is indexed to national hospital chief counsel or chief medical officer compensation, with a minumum bill of 0.5 hours "to prevent an incentive to be careless" regardless of the actual time involved. See building inspector and meat inspector laws. Additional charge of $250 for "expedited service" (i.e. less than two weeks scheduled in advance, just like airplane tickets).

14. Large fines ($10,000) per record keeping violation and $1,000 per day for late filed reports, strictly enforced.

15. Mandatory state certification classes for each employee of 120 hours a year, with instructors paid the rate above and low student-teacher ratios. Compare mandatory CLE or CPR training.

16. Required self-financed background check for good character to obtain or renew business licenses (see character and fitness review, many security clearance jobs, liquor licenses), with no reciprocity. Every background check must be published in every legal publication in the state and open for public comment for sixty days -- churches can buy data fees by e-mail for 25 cents a month. Every pro and con must be weighed publicly and every comment must be heard at any hearing.

17. Graffiti/litter non-removal fine of $100 per day per square foot after receipt of notice. Police patrols at night when graffiti taggers who are politically motivated are a "low priority" since it involves damage ot property, but notices go out every morning like clockwork. Prosecutions in cases tied up in a bow are declined due to "freedom of religion" concerns and the press of other business. Eligible non-profits and retail goods businesses and homeowners eligible for grant program to abate graffiti, but not medical providers. Other providers in office towers don't get tagged.

18. Disclosure information requirement -- in every language revealed by the census to be spoken by a woman of child bearing age in the state, from independent translators, then a confirmation of accuracy fee to hire a different translator to confirm accuracy.

20. Currency payment surtax of 50% (on the theory that tax avoidance by the cash economy should be paid by the cash economy, except no one else receives serious enforcement since they don't have a fixed place of business). Few other surgical procedures are more often paid for in currency.

What right does anyone born and raised in the US and over 25 years of age have a right to be poor? Absent mental or physical handicaps there is no excuse for any adult American to be poor for any extended period of time.

Just because someone has a problem why is that the taxpayers obligation?

Anatid, somehow I missed your comment when I was responding to geokster and anthonyj.

I don't think anyone is saying that the women who were on the pill who got pregnant must have been taking them wrong. But only 13% of women who had abortions who had been using the pill for BC reported that they had taken them consistently. You have to take the pill every day for it to be effective; the doctor who prescribes it tells you that, and the insert does too. You don't take it when you feel like it, or when you have sex, or when you aren't fighting with your boyfriend, or when you remember, you take it every day or it won't work. And again, it wasn't someone else saying those women weren't taking it right, it was those women themselves who said they weren't.

Same with the condoms - if you don't use them every single time, you might as well not bother with them at all.

I suspect abortion is used at times for birth control (not that often; it's expensive and inconvenient) -- however, notably, that's not that usage the current battles cover. If you made a mistake or forgot your birth control, you don't get a late-term abortion, you get a first trimester abortion. As for parental consent laws, teens who have easy access to birth control probably don't have any problems with parental consent.

Laura-
We're in agreement. It just seemed to me that geokster was implying that the 13% were actually not using birth control correctly either, and that any failure is due to incompetence.

AnthonyJ-
Abortion is always a form of birth control - that is to say, it can control whether or not you give birth to a child. It is separate from contraceptives, such as birth control pills and condoms, which prevent the pregnancy in the first place. But both prevent birth. Just a technicality.

"As for parental consent laws, teens who have easy access to birth control probably don't have any problems with parental consent."

That may be true for those teens who use it consistently.

Also, Anatid is correct in talking about the effects that BC pills have on different women. Some women have blood clots or stroke from it, even teenagers. Condoms are fine - and you can get them all kinds of places - but I am vehemently opposed to giving BC pills to teenagers without their parents' knowledge.

Absent mental or physical handicaps there is no excuse for any adult American to be poor for any extended period of time.

Written like one who hasn't looked for a job for a while. There are many disabilities that can make one unemployable. The leading one, for many of my acquaintances, is being "overqualified" or "overexperienced". It seems that hiring managers today have adopted the position that it is better to let a job go undone than hire someone overqualified for it. Nor does it work to lie about one's excessive experience or talent. If you use your real name your qualifications are easily discovered, and if you don't the hiring manager will think you just got out of prison.

Clearly Kennedy meant something different by Casey's formulations than either O'Conner or Souter. It also seems clear he joinded Casey somewhat reluctatly. What he meant, or means now, remains to be seen. The term "undue burden" is a very vague phrase, subject to quite a broad range of possible interpretations. It's not clear that it will mean the same thing in the future that it did in the past.

Children are a financial burden only for self-supporting families (in the USA). If a family qualifies for welfare - and "family" can mean an unmarried 15 year old with one baby - then children are a revenue source.

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